Thursday, April 12, 2012

Ind. Gov't. - Tomorrow is first meeting this year of State Budget Committee ...

Here is the posted list of State Budget Committee members. Several of the members are retiring from the General Assembly this year.

The stated function of the Budget Committee during the interim when the legislature is not in session:

The Budget Committee provides continuing legislative oversight of budget implementation. The Budget Committee meets during the interim between legislative sessions. Many appropriations contained in the Budget require Budget Committee review before any funds may be allotted or spent. In addition, the Budget Committee must review all construction projects that have a cost greater than $100,000 prior to proceeding with construction.

(This may pose some interesting separation of powers questions, but this system has been in place for many years.)

The State Budget Committee is meeting tomorrow in Madison, Indiana. The agenda is 12-pages long, with most items described in great detail.

Some of the items are quite concerning. For instance, item #3, the current Medication Management System for the State Operated Facilities (SOFs), is described as "not a closed loop medication management system, focuses on acute rather than long-term care, loses medication orders, does not provide counter signatures and verifications, not HIPAA compliant, does not have date/time stamp verification, not web-based, lack of role-based security, lack of a centralized database, and lack of standardized reporting ability."

Item #13: "The Department of Administration requests approval to proceed with a fire alarm upgrade project encompassing both the State House and the State Library. The current system was installed in 1990 and is no longer being sold or serviced by the manufacturer. This represents a life safety issue since certain components will no longer be supported or available when repairs and replacement are necessary."

But particularly concerning to me is item #14:

The Office of Technology requests approval to undertake a project to provide emergency redundancy systems in their Data Center, located in the Government Center North Building.

The Data Center currently houses over 95% of the State government servers and data processing equipment.

Due to the State’s server consolidation effort as well as adding processing for the City of Indianapolis, Ivy Tech, the Appellate Courts and others, the Data Center’s backup power capacity exceeds its current systems’ operational capabilities.

The Data Center has two dedicated generators where both generators must be operational to sustain operations in the event of a loss of electrical power. With the insufficient redundant design where one of the generators failed, it would result in State Police, Department of Revenue, Department of Transportation, Bureau of Motor Vehicles and other agencies losing access to critical information.

Funding this request will provide the Data Center with the proper systems to maintain critical server processing capabilities by integrating a third generator into the Data Center backup power system.

Who knew! And does this lack of redundancy include the General Assembly records and databases? Does it include the state-wide JTAC system?

Continuing on through the agenda, finally, at the very end of the final page, page 12, is this entry (in its entirety):

Item #1 is the $320 million in corporate tax receipts discovered last December. Item #2 is the $200 million error discovered last week that resulted in money destined for the counties having gone to the State instead for the past 14 months.

These "discussion items" are detailed in a story today in the Indianapolis Star, which reports:

But the bipartisan committee -- which includes four lawmakers and the governor's budget director -- is not expected to act immediately to hire an independent auditor.

Instead, the group is likely to gather more information about the incident -- and an earlier problem the administration of Gov. Mitch Daniels disclosed in December -- before moving forward with the audit.

"I don't think you're going to see a decision," said Sen. Luke Kenley, R-Noblesville, a member of the Budget Committee. "The question is whether this is indicative of [1] a deeper technology problem, or [2] a deeper audit problem. Or [3] is it the result of a management issue? Until we found out the answers to those questions, I'm not sure how far we want to go."

Stage Collapse - Governor Daniels statement about the release of the State Fair accident reports today

Here is the statement, just released:

“I don’t think we could have done better than these two world renowned firms. I thank them for their thorough and professional work.

“The State Fair Commission knows that we will insist on immediate and complete implementation of the recommendations in this report. But it’s also now clear that most, if not all states, have been deficient in this area and have much to learn from this tragedy. We will share freely all these findings and suggestions with any state who will listen, starting later this month at a national meeting in Indianapolis about national safety standards for outdoor temporary stages and structures. The meeting is being hosted here because of the State Fair accident.

“We’d give anything to have that night over, but occasionally something positive can come out of terrible tragedy, and we have to do all we can to make that happen here.”

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

Jarrad L. Mastin v. State of Indiana - "Mastin has not demonstrated that the trial court’s evidentiary rulings denied him a fair trial. There is sufficient evidence from which the jury could conclude that Mastin committed child molesting by sexual intercourse. His ninety-year sentence is not inappropriate."

Dr. Morse has not shown that the trial court abused its discretion when it precluded testimony from Dr. Morse’s expert witnesses that they believed that Davis had not advised Dr. Morse that his mother had a history of colon cancer despite Davis’ testimony to the contrary. The purpose of that testimony would have been to impeach Davis’ credibility on a critical issue of fact, namely, whether he had told Dr. Morse about his mother’s colon cancer. A determination of Davis’ credibility was within the sole province of the jury, and the proffered testimony was prohibited under Evidence Rule 704(b). Likewise, Dr. Morse has not shown any abuse of discretion in the exclusion of Exhibit H or the testimony of Dr. Welch and Austin. Affirmed.

This appeal, from
the sentence of 100 months’ imprisonment, presents a
single question: Whether a conspiracy to commit robbery
is a “crime of violence” under the Guidelines.

Robbery in Indiana is a “crime of violence” under the
Guidelines and a “violent felony” under the Armed Career
Criminal Act, 18 U.S.C. §924(e). See United States v.
Lewis, 405 F.3d 511, 514 (7th Cir. 2005). Raupp was convicted
under Ind. Code §35-41-5-2 of conspiring to
violate Ind. Code §35-42-5-1, Indiana’s robbery statute.
Application Note 1 to §4B1.2 tells us that an inchoate
offense such as conspiracy is a “crime of violence” when
the underlying crime is one. This note reads: “ ‘Crime
of violence’ and ‘controlled substance offense’ include
the offenses of aiding and abetting, conspiring, and
attempting to commit such offenses.” That disposes of
this appeal, as far as the Sentencing Commission is concerned.

Raupp asks us to ignore the application note. He contends
that it has been superseded by Begay v. United
States, 553 U.S. 137 (2008), and later decisions. * * *

Congress left “crime of violence” in §994(h) undefined * * *

Thus the Commission is free to go its own way; it
can classify as “crimes of violence” offenses that are
not “violent felonies” under §924(e). It can’t do this by
application notes that contradict the text of the Guideline,
but what the first note to §4B1.2 does is address
a question—the treatment of inchoate offenses—left
open by the text of §4B1.2, as it is also left open by the
text of §924(e) and the holding of James.

Section 924(e) uses the definition of “violent felony” to
set 15-year minimum sentences. The Sentencing Commission
does not prescribe such a stern and inflexible
outcome by defining “crime of violence.” Both §4B1.1
and §2K2.1(a)(2) raise the offense level without setting
a mandatory minimum. They are just Guidelines, so the
judge is free to impose a sentence outside the Commission’s
preferred range after evaluating each defendant’s
arguments. See United States v. Corner, 598 F.3d 411
(7th Cir. 2010) (en banc). Raupp was free to contend that
a conviction for conspiracy to commit robbery does not
imply the same level of dangerousness as a conviction
for robbery, and to seek a lower sentence on that account.
But he does not assert that the district judge misunderstood
the extent of her discretion or exercised
it unreasonably. His sole contention is that district
judges must ignore the first application note to §4B1.2,
and that contention does not carry the day. AFFIRMED

[Circuit Judge Woods dissent begins on p. 10 of 22] The only point that
Anthony Raupp has raised on this appeal is whether
the district court, in applying U.S.S.G. § 2K2.1(a)(2),
correctly added two offense levels under the U.S. Sentencing
Guidelines on the ground that Raupp had two
previous convictions for crimes of violence. That guideline
stipulates that the meaning of the term “crime of
violence” for purposes here is the same as that found
in § 4B1.2(a) and Application Note 1 of the Commentary
to § 4B1.2. The question before us concerns what that
definition properly covers and whether it includes
Raupp’s prior state conviction for conspiracy to commit
robbery. My colleagues conclude that the Sentencing
Guidelines in this instance have adopted a significantly
broader definition than the one used in the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B).
With respect, I do not agree with them. Their holding
is inconsistent with a long line of cases holding that the
text of § 4B1.2 and the nearly identical text in the ACCA
have the same meaning. Although there would be no
problem if the commentary to the Guidelines on which
my colleagues rely were merely explaining concepts
within the boundaries established by the Guidelines
themselves, there is a problem when the commentary
strays outside those boundaries altogether. I am persuaded
by Raupp’s argument, and I would therefore
vacate his sentence and remand for resentencing.

Jaymie Mount disappeared while
on release awaiting trial on a charge of possession of a
gun by a felon, in violation of 18 U.S.C. § 922(g)(1). He
was captured nearly three months later and pleaded
guilty two weeks before his trial was set to begin. At
sentencing, the district court granted him a two-level
reduction in his offense level under the U.S. Sentencing
Guidelines for acceptance of responsibility. See U.S.S.G. § 3E1.1(a). In keeping with the plea agreement, the government
moved for Mount to receive an additional onelevel
reduction, because it was satisfied that he had
given prosecutors timely notice of his intention to plead
guilty. See id. § 3E1.1(b). The district court denied that
motion, however, citing Mount’s flight as its reason.
Mount appeals, arguing that the additional one-level
reduction is mandatory once the government determines
that the criteria spelled out in § 3E1.1(b) are satisfied
and it makes the necessary motion. We conclude that
Mount is correct, and we thus remand for resentencing. * * *

We conclude that the district court erred here by
failing to grant Mount the one-level reduction under
§ 3E1.1(b) that was triggered by the government’s motion.
His advisory guideline range was affected by that error,
and we cannot say on this record that the error was
harmless. We do note, however, that the district court
would have had the authority to select a higher sentence
based on its concern about Mount’s decision to go
on the lam for several months. We express no opinion
about the reasonableness of any final sentence the
district court may select.

Courts - More on "Women Supreme Court Justices Celebrate 30 Years Since Court's First Female" [Updated]

Updating this ILB entry from earlier today, Tony Mauro reports today in the Blog of Legal Times in a story headed "Supreme Court Women: The Power of Four." Some quotes:

[Retired Justice Sandra Day O'Connor] spoke at a panel discussion in her honor, along with the three women who currently sit on the Court: Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. * * *

When Duff asked about the Court's intensely active questioning from the bench, O'Connor guessed with a smile, "Maybe women ask more questions." She was also the only of the four justices to answer the inevitable question about why it is important for the Court to have an increasing number of women. "Maybe you haven't noticed, but I think maybe 51 or 52 per cent of the population are females," O'Connor said. Women notice when public institutions are mostly male, she said, and they should. "That's part of the deal."

[Updated at 2:03 PM] Some hilarious bits in this NY Times blog entry, including:

The one aspect that got the most attention — one that continues to this day — was the morning exercise class Justice O’Connor founded.

Justice Elena Kagan, who served as a law clerk to Justice Thurgood Marshall from 1987 to 1988, recalled meeting and disappointing Justice O’Connor back then.

Reporters are at State Fair Board meeting today, hearing investigative reports from reports from Witt Associates and Thornton Tomasetti. Here is current WISH TV report.

It must be complex ... Niki Kelly of the FWJG tweets: "Just the setup of the report is complicated. Forensic database. Metallurgy analysis. Reverse engineering. Lasers.." Carrie Ritchie of the IndyStar: "Nacheman says TT evaluated the stage on-site and off-site, including in some sort of wind-tunnel setting."

Earlier this week AG Zoeller filed a response to a motion for summary judgment in the federal lawsuit challenging the Indiana immigration law enacted in 2011. In June of 2011, Judge Sarah Evans Barker granted a preliminary injunction - see ILB entry here from June 25, 2011. See this update from July 19, 2011.

Here is Charles Wilson's detailed AP story from yesterday, that begins:

INDIANAPOLIS (AP) — State attorneys say the ACLU is exaggerating the powers Indiana's new immigration law gives to local police in an effort to persuade a federal judge to throw out parts of the law.

In a brief filed this week in U.S. District Court in Indianapolis, the state attorney general's office argued the ACLU and other plaintiffs have mischaracterized the law and that its provisions "do not mandate that local law enforcement arrest persons in a willy-nilly fashion based on the mere suspicion that the person may not legally be in the United States." * * *

Judge Sarah Evans Barker granted an injunction last July blocking parts of the law from taking effect, and the plaintiffs are asking her to make the injunction permanent.

The ACLU has said the law's wording would allow the arrest of anyone who has had a notice of action filed by federal immigration authorities, a formal paperwork step that affects virtually anyone applying to be in the U.S. But the state claims that police could only arrest immigrants when they have documents showing the federal government has ordered them to be removed or detained, and the law allows officers to use discretion.

There is much more in the story.

Finally, here is the Indiana AG's 35-page brief, filed April 9, 2012, responding to plaintiffs' motion for summary judgment. And here is the plaintiffs' 35-page brief in support of their motion for summary judgment, filed Nov. 20, 2011.

Updating this ILB entry from April 9th, according to a press release, Greg Bowes, former Marion County Assessor and current Democratic candidate for Marion County Superior Court Judge, along with four other candidates, Mark King, Paul Ogden, Zach Mulholland, and Brian Cooper are filing a lawsuit today:

... against the Marion County Board of Voter Registration and the Marion County Election Board. The lawsuit alleges that Voter Registration illegally denied them access to public information in its voter registration database. It alleges that the Election Board violated the public records law by refusing to adopt a policy allowing them public access to the information.

The PEW Center on the States has released a new report today - from the news release:

A report by the Pew Center on the States concludes that 13 states are leading the way in generating much-needed answers about tax incentives’ effectiveness. Twelve states have mixed results. Half the states have not taken the basic steps needed to know whether their incentives are effective. The study highlights a wealth of promising approaches states have taken to help lawmakers find those answers.

A few quotes from the report itself:

California does not publish high-quality
evaluations of a tax credit for research
and development that costs more than $1
billion annually. Sixteen states (Alabama,
Alaska, Idaho, Illinois, Indiana, Maine,
Maryland, Mississippi, Montana, Nevada,
New Hampshire, South Dakota, Tennessee,
Utah, Vermont, and Wyoming) and the
District of Columbia did not publish
a document between 2007 and 2011
that evaluated the effectiveness of a tax
incentive.

As states spend billions each year on tax incentives, the lack of scrutiny over each program’s impact is a serious problem, according to a report released Thursday by the Pew Center on the States, Stateline’s parent organization.
Each state has at least one incentive program, and most have many. But the Pew report, based upon review of close to 600 documents from state agencies and legislative bodies and more than 175 interviews, found that 25 states and the District of Columbia are “trailing behind” when it comes to reviewing the economic impact of tax incentives.
“[W]hen lawmakers consider whether to offer or continue such incentives, how much to spend, and who should get them, they often are relying on incomplete, conflicting, or unreliable information,” the report says.
As a result, taxpayers in some states may be unknowingly footing the bill for programs that are ineffective and, in some cases, abused. * * *
Though no state has a complete picture of the impact of its tax credits, the report notes, some states have ramped up scrutiny, providing models that other states might follow. Overall, the report names 13 states that are “leading the way,” while 12 states have “mixed results.”
Under a new Oregon law, for instance, tax credits expire every six years and need legislative approval before renewal. Washington State reviews each tax credit every ten years, and Arizona and Iowa review major incentives every five years, though Iowa’s reviews, initiated after the state uncovered wide-scale abuse of its generous film tax credit, have not yet offered recommendations to policy makers.
“It’s just a good idea to review them periodically and make sure they’re worth it,” J.D. Mesnard, an Arizona state representative who co-chairs the committee that reviews the state’s tax credits, told Pew researchers.

WASHINGTON -- The only four women to serve as Supreme Court justices gathered Wednesday night to celebrate Sandra Day O'Connor's pathbreaking arrival on the bench three decades ago.

O'Connor, who retired in January 2006, was joined at the Newseum by sitting justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan for a wide-ranging panel discussion extending from the impact of O'Connor's nomination on the other three women to the state of the court today.

President Ronald Reagan, fulfilling a campaign promise, nominated O'Connor in July 1981, when she was serving in relative obscurity as a state judge on an intermediate appeals court in Arizona. The Senate unanimously confirmed her nomination that September.

"It's all right to be the first to do something, but I certainly didn't want to be the last woman on the Supreme Court," O'Connor said, reflecting on the responsibility she felt as the lone representative of her sex among the nine justices.

Courts - "Florida Supreme Court has established new rules that would muzzle individual judges who try to have their way with the Legislature."

That is a quote from a story headed "In wake of 'Taj Mahal' scandal, Florida Supreme Court approves new lobbying rules for judges," by Lucy Morgan in the April 11th Tampa Bay Times. The lede:

TALLAHASSEE — Stung by public reaction to judges who lobbied state lawmakers into a $50 million courthouse many have dubbed a "Taj Mahal,'' the Florida Supreme Court has established new rules that would muzzle individual judges who try to have their way with the Legislature.